Mathias Cheung

Call 2015

Mathias is developing a busy domestic and international commercial practice which covers all areas of Chambers’ work, including construction, engineering and infrastructure, energy and utilities, information technology, professional negligence, and international arbitration. In addition to these specialist areas, he has also gained experience in a wide range of commercial disputes, including cases on insolvency, fraud, insurance, assignment, subrogation, conflicts of law, and airline claims.

Mathias has experience at all stages of mediation, litigation, adjudication, and arbitration, and he has worked with a variety of bespoke and standard form contracts including the FIDIC, JCT, NEC and ACE forms, as well as various forms of PFI contracts.

As a native of Hong Kong, Mathias is fluent in both Cantonese and Mandarin, and he is therefore able to take instructions for cases involving Chinese-speaking parties and Chinese documentation in Hong Kong, Macau, Mainland China, Singapore and other jurisdictions. Mathias also has working proficiency in French.

Mathias is the winner of the SCL Hudson Prize 2015 for his essay entitled ‘Shylock’s Construction Law: the Brave New Life of Liquidated Damages?’ on the recent Supreme Court decision regarding penalty clauses, and has delivered presentations on this topic across the country. He has also published in the Construction Law Journal, International Construction Law Review, TECBAR Review and Construction Law newsletter, and is the general editor of Chambers’ Brexit Bulletin.

CONSTRUCTION, ENGINEERING AND INFRASTRUCTURE

Mathias has acted in disputes over design and workmanship defects, delays, variations, loss and expense, and termination in respect of a range of projects from residential and commercial construction to complex infrastructure and PFI projects. Recent work includes:

Successfully obtaining default judgment for the claimants in McDonald v D&F Contracts(19 March 2018, reported in Lawtel), resolving a conflict in authorities regarding applications under CPR Part 12 where an acknowledgment of service or defence is filed late but before the date of the application.

Acting as junior counsel in an ongoing dispute arising from a project involving the Nottingham Tramlink extension works.

Acting as junior counsel for a main contractor in a multipartite dispute concerning delay and defects in the design, construction and commissioning of the Rolls Building, involving complex factual and expert evidence on delay analysis and quantum.

Acting as sole counsel in a multi-track claim involving retention and a counterclaim for various workmanship defects in a care home, including an application for interim payment.

Advising a facilities management contractor on claims and deductions arising from issues of health and safety and defects in a PFI hospital project in Middlesborough.

Advising a facilities management contractor on a complex delay and disruption claim arising from asbestos contamination in a PFI school project in London.

Advising a facilities management contractor on the interpretation of the payment mechanism and service failure deductions in a PFI hospital project in Portsmouth.

Advising a facilities management contractor on the interpretation of a PFI contract concerning the reimbursement mechanism for the use of biofuels in a number of schools in Salford.

Advising on the finality of milestone certificates in a PFI contract concerning the rehabilitation and maintenance of roads in Birmingham.

Advising an employer on a contractor’s claim for extra costs of alleged variations under a lump-sum design and build contract.

Advising an employer on a claim based on incomplete and defective building works against a contractor’s agent who has received the payments for the works.

Advising on an employer’s claim based on implied/oral contracts and collateral warranties concerning incomplete and defective works in the construction of an annex and patio in a family home.

Advising on limitation periods in a dispute concerning various latent defects in a domestic landscaping project.

Advising on and preparing for an application for an interim injunction against an employer calling on an on-demand performance bond under the FIDIC Yellow Book Conditions.

Advising on the effect of a limitation of liability clause and the exclusion of consequential loss in a contract for the supply of concrete.

Advising on limitation periods and liability for fitness for purpose in a contract for the installation of pipes.

Drafting grounds of appeal and a skeleton argument in a claim involving the construction of key performance indicators in a PFI contract for refurbishment works in social housing.

ARBITRATION

Mathias has acted in commercial and construction arbitrations both in the UK and abroad. Recent work includes:

Acting as junior counsel for a local contractor in an arbitration in Hong Kong (HKIAC rules) in a dispute concerning the construction of a residential complex in Macau.

Acting as sole counsel for an employer in a CIMAR arbitration in respect of widespread defects in the design and construction of student accommodation under a JCT Design and Build Contract.

Advising an employer on an urgent CIMAR arbitration for declarations in respect of pay less notices, final accounts and wrongful termination/repudiation under a JCT Minor Works Contract.

Advising on the incorporation into a sub-contract of an arbitration clause contained in a main construction contract based on the JCT standard form.

ENERGY AND UTILITIES

Mathias has undertaken work on a range of energy projects in line with Chambers’ specialisms. Recent work includes:

Advising a large oil refining company in the Middle East on potential contractual claims against a contractor consortium in respect of delays and defects in the construction and commissioning of a plant, involving the interpretation of liquidated damages for delay and performance guarantees, omission of works, injunctions against termination, and carve-outs for gross negligence and willful misconduct.

Acting as sole counsel for a contractor in its application to strike out a claim by a utilities undertaker in respect of alleged damage to underground apparatus and associated diversionary works in a construction site.

Acting for a leading manufacturer of cement in a claim concerning overpayments for excavation and restoration works at a quarry under a re-measurement contract.

Acting in a claim concerning payments for sewerage services allegedly provided by a statutory undertaker under the Water Industry Act 1991.

Advising on delays and extensions of time in a project involving the construction of a combined heat and energy plant pursuant to the FIDIC Yellow Book Conditions.

Advising on the various causes of action in a dispute concerning subsidence in a property constructed over an abandoned mine shaft.

Advising on delays and extensions of time in an international project for the construction of a power plant.

Advising on and drafting a defence in a claim concerning the international sale and purchase of crude oil.

PROFESSIONAL NEGLIGENCE

Mathias has undertaken work on a range of energy projects in line with Chambers’ specialisms. Recent work includes:

Advising a large oil refining company in the Middle East on potential contractual claims against a contractor consortium in respect of delays and defects in the construction and commissioning of a plant, involving the interpretation of liquidated damages for delay and performance guarantees, omission of works, injunctions against termination, and carve-outs for gross negligence and willful misconduct.

Acting as sole counsel for a contractor in its application to strike out a claim by a utilities undertaker in respect of alleged damage to underground apparatus and associated diversionary works in a construction site.

Acting for a leading manufacturer of cement in a claim concerning overpayments for excavation and restoration works at a quarry under a re-measurement contract.

Acting in a claim concerning payments for sewerage services allegedly provided by a statutory undertaker under the Water Industry Act 1991.

Advising on delays and extensions of time in a project involving the construction of a combined heat and energy plant pursuant to the FIDIC Yellow Book Conditions.

Advising on the various causes of action in a dispute concerning subsidence in a property constructed over an abandoned mine shaft.

Advising on delays and extensions of time in an international project for the construction of a power plant.

Advising on and drafting a defence in a claim concerning the international sale and purchase of crude oil.

INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS

Mathias has experience of cases in the I.T. and telecommunications sector. Recent work includes:

Acting as sole counsel in a number of claims brought by a statutory undertaker for telecommunication networks in respect of damage to its apparatus by groundworks and consequential diversionary works, involving issues of vicarious liability and non-delegable duties in tort.

Advising on and preparing submissions for an expedited trial concerning key performance indicators and the termination of an outsourcing contract for the provision of health, transport, communications and public safety services.

Advising on and preparing opening submissions for a Part 8 trial concerning obligations in respect of the database and calculations used in connection with the rehabilitation and maintenance of roads under a PFI contract.

ADJUDICATION

Mathias has extensive experience of all aspects of statutory and contractual adjudication. He has recently been instructed in a number of cases, including:

Acting in an adjudication under a NEC subcontract regarding delays and liquidated damages in respect of upgrading works at the Gatwick Airport.

Acting for the litigation funder in an adjudication of final account claims under a NEC contract assigned from a liquidated subcontractor in respect of landscaping works in an Olympic stadium in London, and advising on mutual set-off under the Insolvency Rules.

Acting for and advising the successful parties in a number of enforcement proceedings, one of which involved numerous concurrent adjudications and the issue of set-off of one decision against another.

Successfully acting for building contractors (referring parties) in a number of recent adjudications involving the validity of payment applications/invoices and pay less notices.

Successfully acting for a reputable building contractor (referring party) in a substantial adjudication arising from design issues and professional negligence in a PFI hospital project.

Successfully acting as sole counsel for a contractor in TCC proceedings for the enforcement of multiple adjudication decisions in respect of a number of contracts between the same parties.

Successfully acting for a contractor (responding party) in an adjudication concerning various allegations of repudiation under a FMB Plain English Domestic Building Contract.

Successfully acting for a construction management company (referring party) in an adjudication concerning wrongful termination, allegations of material breach and deductions from interim payments/final account under a letter of intent, including a jurisdictional challenge on contract/no contract grounds.

Acting for a contractor (referring party) in an adjudication arising from a pre-construction services agreement and involving a jurisdictional challenge on the existence of a construction contract.

Acting for a contractor (referring party) in an adjudication concerning interim payments and alleged flooring defects under a JCT Minor Works Contract.

GENERAL COMMERCIAL

Mathias has advised on several commercial disputes related to, or outside the field of, construction. Recent work includes:

Successfully defending one of the largest air carriers in the UK in a EC261 compensation claim for flight delays/cancellation due to extraordinary circumstances (weather conditions incompatible with the safe operation of the flight concerned).

Acting for and advising a reputable building contractor in resisting an application to the Companies Court by a subcontractor’s liquidators under section 236 of the Insolvency Act for an account of all dealings.

Acting for and advising an employer on winding-up proceedings in Manchester arising from a contractor’s adjudication where there is a serious and genuine cross-claim due to defects.

Advising on the restoration of a company voluntarily struck off contrary to the Companies Act 2006, application for a company director disqualification order and personal remedies against a sole director in compulsory winding up proceedings under the Insolvency Act 1986.

Advising on the construction of an insurance policy in respect of loss and damage arising from subsidence.

Advising on the duty of good faith and the issue of apparent/ostensible authority in a multi-partite dispute concerning the termination of an outsourcing agreement.

Advising on the proper construction of an agreement involving the partial assignment of a debt and subrogation in an international sale.

OTHER PROFESSIONAL INTERESTS

Mathias is the general editor of Chambers’ Brexit Bulletin, which is a periodic bulletin providing regular updates on the Brexit negotiations and other developments relating to the construction and legal services industries post-Brexit.

Mathias is a member of COMBAR, TECBAR and the Society of Construction Law. He is also a member of the Human Rights Lawyers Association and a committee member of the UK Association for European Law.

Publications:

Construction law in 2017: a review of key legal and industry developments’ (Informa, April 2018).